Loss of immunity for lifeguards could lead to lawsuits

County officials baffled by Legislature’s refusal to extend protections

Maui County Ocean Safety officer Kalaheo Barrows keep an eye on visitors Wednesday at Makena State Park’s Big Beach. Limited legal liability immunity for lifeguards expires June 30, after state lawmakers refused to reauthorize it. -- The Maui News / MATTHEW THAYER photo

Maui County officials are baffled that state lawmakers decided to end limited liability immunity for county lifeguards, which “opens the floodgates” to personal injury lawsuits, a Maui County Council member said last week.

“There’s nothing in record to show a legitimate purpose for why they (state lawmakers) did that,” Council Member Don Guzman said. “You’re asking us to work the water lines and send our employees in the ocean, and you’re not going to protect us?”

In place for 15 years, the lifeguard immunity expires June 30. It shields county lifeguards and counties at state beach parks “except in the case of gross negligence or wanton acts or omissions.”

A new law doesn’t reauthorize the immunity and only requires the state attorney general to defend lifeguards at state beach parks against any civil action based on the negligence, wrongful act or omission. The county is left to defend itself and its lifeguards from lawsuits on county beach parks and pay any damages.

“While the state gets to protect themselves, they’ve exposed us at the county,” Guzman said. “We end up as the county paying the cost for these unfunded state mandates.”

A sign warning swimmers of dangerous shorebreak is posted in front the ocean safety tower located near the first entrance of Makena State Park’s Big Beach. -- The Maui News / MATTHEW THAYER photo

As the end of the immunity approaches, county lifeguards fear being sued, and county officials are scrambling to figure out how to proceed.

“There’s no question of whether the county is going to stand by its Ocean Safety officers — of course we will,” Managing Director Keith Regan said. “It’s still confusing to all of us why (lawmakers) would do something like this because it makes no sense.”

The issue of lifeguard liability is pending before the council’s Parks, Recreation, Energy and Legal Affairs Committee, chaired by Guzman. He said he hopes to schedule a discussion before June 30.

“We need to start talking about this because this is a huge, huge issue,” he said.

What happened?

Rose Ignatenknov, 7, approaches an oncoming wave at Makena’s Big Beach on Wednesday morning. The Seattle girl was toppled by the wave while playing with her father, but was not injured. She said the secret to playing in the waves is to “swim under them.” -- The Maui News / MATTHEW THAYER photo

State Sen. J. Kalani English, who represents East Maui, Upcountry, Molokai and Lanai, introduced the bill that became Act 170 in 2002. It was the first to give lifeguards limited liability protection.

English had served two terms as a Maui County Council member, and he “used to agonize” over lifeguards having to do their job while worrying about being sued personally, he said.

“It has a chilling effect because when there’s bad surf and the likelihood of drowning is very high, lifeguards put their lives on the line out there and they don’t know if the person is going to survive,” he said. “If you’re unsuccessful — or even if you’re successful — you might get sued, and they don’t get protection.”

English has written bills to extend the measure every five years, while trying to make the immunity permanent.

This year, Senate Bill 562 sought permanent immunity, but senators later agreed to a four-year extension. However, the House Judiciary Committee gutted the bill, taking away immunity for lifeguards and leaving them with a legal defense by the attorney general. The House passed the revised bill unanimously. (Oahu Rep. Linda Ichiyama was excused.)

The Senate disagreed with the changes, and both chambers appointed conferees to iron out the differences. The House refused to budge, though, leading the Senate to agree to the revised bill.

“They put us in a take-it-or-leave-it situation,” English said.

South Maui Rep. Kaniela Ing said that the bill “seemed to be a downtown, Oahu-driven policy.”

He called it “rash” for the Senate to agree with the House version, for a bill “as controversial as this.”

“The bill in final form undermines the current protections offered to lifeguards,” he said. “If it really was a take-it-or-leave-it situation for the Senate, why not leave it?”

West and South Maui Sen. Roz Baker called Ing’s comments “malarkey.” She said “the House could’ve sent over a different bill.” She said that the House position forced lawmakers to take “five steps backwards.”

“I really felt like we were behind the eight ball and wanted to provide some protections,” Baker said.

English called Ing “very naive” and said he was “disappointed” by his comments. He said Ing should have been lobbying his House members to “do the right thing.”

“I’m perplexed that he would say that,” English said. “We had to make a hard choice. I’ll reintroduce the bill next session, and we’ll see, but they have to change the dynamics.”

New leadership

Oahu Rep. Scott Nishimoto took over as chairman of the House Judiciary Committee this past legislative session and led the charge in removing the protections. Last month, he said that the immunity was dropped in the interest of fairness.

“No other first responders, such as firefighters, police officers or EMT ambulance personnel, have statutory immunity to perform their duties at a level below reasonable care,” he said.

Colin Yamamoto, a battalion chief for Maui County Ocean Safety, rejected Nishimoto’s reasoning and said lifeguards have never been immune from gross negligence, wanton acts or omissions. All first responders have been held to the same standards of care, and victims of death or injury have always had legal means to seek compensation, he said.

However, before lifeguards gained immunity in 2002, there was a disproportionate amount of lawsuits that targeted them compared with other first responders, he said.

It wasn’t immediately known how many lawsuits were filed against lifeguards before 2002.

But “there were a lot of frivolous lawsuits,” Yamamoto said. “When the state wanted to put lifeguards at its parks and contract with the county, the county didn’t want to do it. Only after Act 170 was established, the county said, ‘We’ll do it.'”

The state does not employ lifeguards and contracts the county to provide the service. Makena beaches, which are among the most dangerous in Hawaii for spinal cord injuries, received lifeguards after the protections were put in place.

The county spends just under $1.1 million monitoring Makena, but it receives only $606,000 from the state for nearly a dozen lifeguards.

“It’s deceiving because the county is getting hit by fringe benefits,” Yamamoto said. “For every dollar I earn in wages from the county, the county has to pay approximately 82 cents in fringe benefits,” which includes workers’ compensation and medical and sick leave.

“Even though the state gives us this grant, we still operate at a loss. We’ve been doing it for the benefit of the public,” he said.

Special interests?

Personal injury lawyers have advocated against legal immunity for lifeguards. The Hawaii Association for Justice, a group of personal injury lawyers, hired Robert Toyofuku, one of the state’s top lobbyists, to end lifeguard immunity.

The association “has always maintained that giving lifeguards immunity from performing their duties in an unreasonable or negligent manner is bad public policy and compromises safety for residents and visitors alike,” Toyofuku said in written testimony.

In 2007, the state formed a task force of county mayors, attorneys and state experts to advise the Legislature on the effectiveness of various state and county liability protections. Two years later, the task force found that Act 170’s limited liability for lifeguards was “effective” and “promotes and increases public safety.”

The task force estimated that the act saved the state $1 million in liability insurance costs in its first four years and recommended it be made permanent.

The nine-member task force unanimously supported the protections — except for Toyofuku, who represented the Consumer Lawyers of Hawaii (now the Hawaii Association for Justice).

County officials, lifeguards and even fellow lawmakers have questioned the motives of Nishimoto and other House leaders for changing the law.

Nishimoto, Rep. Sylvia Luke, who chairs the House Finance Committee, and then-Majority Leader Scott Saiki have all worked for personal injury law firms. Luke is listed as a member of the Hawaii Association for Justice on its website, and state documents show that Nishimoto’s campaign treasurer works at the same law firm as Luke — Cronin, Fried, Sekiya, Kekina & Fairbanks, which bills itself as the “premiere personal injury law firm in Hawaii.”

Nishimoto worked as a law clerk for the firm.

“To do what they did was just gut-wrenching,” Yamamoto said. “It bothers me and basically, when it’s election time for legislators, I’m hoping their constituents in their district remember what happened and don’t vote for them.”

The three lawmakers did not respond directly for comment, but House spokeswoman Carolyn Tanaka emailed a response Friday on their behalf.

“The House and Senate overwhelmingly approved SB 562,” Tanaka said. “It is now before Governor (David) Ige who must decide if he will veto it or sign it into law.”

Ige spokeswoman Jodi Leong said Thursday that the governor was not commenting on bills while they undergo departmental, policy and legal reviews. Ige may allow the changed bill to become law without his signature.

Power of attorneys

Former House Speaker Rep. Joe Souki of Wailuku said that the reason both chambers unanimously approved the bill, which included all Maui lawmakers, was because of the power and will of the three House leaders.

“At that time, I was speaker of the House, and I really can’t politically go against the will of the majority, so I was stuck with it,” Souki said.

Souki had been privately lobbying against the lifeguard bill changes, but he was quickly losing support of the House majority. He resigned as speaker at the end of the session and was replaced by Saiki.

“I could see the writing on the wall for myself and the bill,” he said. “They got 30 strong and with that they can do anything they want to.”

Souki said he hopes the governor will veto the bill. The attorney general requirement was a “new twist” proposed by lawyers, but it will ultimately accomplish little for counties and lifeguards, he said.

“Having an attorney represent them doesn’t mean anything because it ends up in plea anyways,” he said. “They don’t go to court it’s all settled outside. It’s bogus. Both sides come up with a figure, and the plaintiff attorney goes away happy with a little money in his pocket.”

A half-dozen personal injury lawyers were contacted for comment, but none replied.

Attorney General Doug Chin told legislators that it would not be feasible for the state to pay an estimated $3 million a year annually to insure county lifeguards at state beaches.

Yamamoto said he would rather use the money for additional lifeguards at unguarded beaches. The likelihood of a person drowning at a lifeguarded beach is 1 in 18 million, according to the United States Lifesaving Association.

‘Do your job and do it well’

There are no plans to pull Maui County lifeguards immediately from beaches once the immunity protection expires, Yamamoto said.

“What I’m telling my lifeguards is, ‘Continue to do standard care, document well what you did and didn’t do and be nice,'” Yamamoto said. “Do excellent customer service and that will minimize lawsuits.

“They are very worried, but I’m just telling them, ‘Do your job and do it well.'”

The county has 61 lifeguards, including the Makena guards. They will still be covered by qualified immunity, which bars claims against state officials in their individual capacities if their conduct did not violate clearly established federal statutory or constitutional rights.

Maui County Deputy Corporation Counsel Jeffrey Ueoka said that, without the lifeguard immunity, the county will be more vulnerable to lawsuits. He didn’t know if the county expects more personal injury lawsuits, but he noted that its lifeguards, or Ocean Safety officers, are “well trained” and “very professional.”

“My boss (Pat Wong) has prepped for it, but it’s hard to prepare for the unknown because each case will be fact specific,” Ueoka said.

One lifeguard, who declined to be identified, said that several hotels and resorts have been sued over the years after employees advised guests to go to beaches where they were injured. Those guests sued the hotels, and some have received large settlements, the lifeguard said.

“Should I even suggest a place?” the lifeguard asked.

Guzman said “there’s no doubt in my mind” that the county would have been included in those personal injury lawsuits if not for the state’s protection against liability.

“We spend millions and millions of dollars on litigation,” he said. “It’s probably one of the biggest expenses we have.”

Ing said that, moving forward, he promises to bring “more transparency to the legislative process” as a newly selected majority policy leader.

“I just want to see our lifeguards able to protect our community without the fear of frivolous charges,” he said.

English said that, until recently, county officials have not pushed hard enough for reauthorization of lifeguard immunity.

“We have to work harder next year,” he said.

* Chris Sugidono can be reached at csugidono@mauinews.com.

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